Are “Anchor Babies” Constitutional?

The concept of “anchor babies” refers to those whose parents are illegal immigrants into the United States and have a baby on this soil. That baby then inherits full citizenship and even the right later, as an adult, to sponsor his/her own illegal parents in their quest for citizenship. Is this practice Constitutional?

For the casual reader the amendment seems to validate such: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The debate for or against the practice of allowing citizenship for babies of illegals born in the U.S. rages on with virtually no one going to the source of the alleged authority—the crafters of the 14th Amendment of the Constitution.

Senator Jacob Merritt Howard, architect of the 14th Amendment, actually structured the Amendment (one of two defining the legal status of freed slaves after the Civil War, the other being the 13th which gave them freedom) to prevent that very interpretation. He said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign minister accredited to the Government of the United States, but will include every other class of persons.” It was he who insisted that the qualifying phrase “subject to the jurisdiction thereof” be inserted into Section I. Those sneaking across our borders in the cover of darkness are clearly foreigners and thus specifically exempted from citizenship; the Constitution was not meant to protect those who are here illegally. Also notice the exclusion of babies born of ambassadors while here as well.

The record of the Senate deliberations on the 14th amendment shows this to be the view of the Senate. There is no such thing as automatic citizenship from this amendment without serious distortion of it. In fact, Lyman Trumbull, co-author of the 13th Amendment outlawing slavery, addressing the definition of the phrase “subject to the jurisdiction thereof,” asked, “What do we mean by complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.”
Those crossing our borders illegally have jurisdiction or allegiance elsewhere and thus cannot have citizenship. How can a child of such a parentage have what his parents clearly do not have? How many are born illegally in the United States per year? Statistics are difficult to validate but the Pew Hispanic Center study estimated 340,000 in 2008 alone. If they in turn are used as sponsors for their parents in their quest for citizenship, such could be a million per year.

Citizenship was denied some of my ancestors and yours. Native Americans owed allegiance to their Sioux or Apache or Blackfoot or whatever Indian nations, and thus were not yet “subject to the jurisdiction thereof” of the nation they sought citizenship in. Certainly one must cease to be at war or conflict with the newly embraced country. This was not granted until 1924 when this requirement was satisfied.

Many of our Mexican friends send portions of their checks home to Mexico and plan to return to their native land upon retirement with pensions and/or social security sent to their “first” country from the country they extracted the wealth- us. Some vote in Mexican elections from here. It is indeed hard to argue that they are not instead subject to the jurisdiction of another land other than the United States- and most admit it. Unfortunately for them, the U. S. Constitution specifically denies such citizenship.

Dr. Harold Pease is a syndicated columnist. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College.

14 thoughts on “Are “Anchor Babies” Constitutional?”

I think the article might take an incorrect view. Philosopherking defines jurisdiction properly. The statement in the artilce concerning owing no allegiance to another country refers to people born here whose parents are here transitorily, such as or vacation.

These anchor babies are not born here transitorily. They are born to people who have largely migrated here with the intent to stay.

The politics of today have simply shifted from those of the 1700's. Back in the 1700's, we were still a wide open country, inviting the world to come and make their homes here. That openness was still practiced in the mid to late 1800's. If you wanted to come here, you could, and further all your kids would be citizens and have all there privileges and immunities of all other citizens just by being born here. It was a guarantee to induce people to come to our land of freedom and opportunity.

Politics have simply changed now that our country has become so much more developed, with far fewer open and untamed lands to tame and develop. Anchor babies is just a concept people use to express a frustration with the perceived immigration problem. And this new way of thinking has resulted in strained arguments, such as are made in this article.

The Constitution is an imperfect document, and if immigration and anchor babies are a problem, it would need to be amended to deal with it.

Wouldn't transitory people also be subject to the jurisdiction of the law where they are and any child they have be considered citizens under the 14th amendment? This could apply to diplomats who have kids since there kids who were born on us soil would be subject to the law. For example; a newborn who violates the law (assuming that is possible) would be prosecuted by that law thus making them subject to the juridiction.

On the other hand–subject to the jurisdiction could mean subject of that jurisdiction like a person is a subject to the kings authority which makes that person a kings subject. The constitution and the law is king so perhaps it is saying subject to the law's jurisdiction in the same way a person was subject to the king's authority. This would mean a person who belongs to that state or owes allegieance to that state.

To be honest, I tend to think the author is correct but the language by itself doesn't suggest that which makes it a toss-up for me at this point in time. I just don't know yet what is correct.

October 4, 2010 at 5:29 am

Jeff Matthews

Sure, they are still subject to our jurisdiction, but look for the intent here. Notice there is also a phrase which sets a residency requirement, "…. and of the State wherein they reside."

This leaves out those born here during their parents' vacation when their intent is to return home outside of the US in short order.

If you are born in the US to parents who have come here with the intent to reside here, you are a citizen. You are not second class. That is what the amendment says.

Just like royalty was scorned, any notion that you would be inferior due to who your parents were was also scorned.

To understand better, keep thinking to the purpose of the privileges and immunities clause.

"Anchor babies" is really a problem concept because it is so contra to the Constitution. What do you do with babies of anchor babies? What about the grandchildren of anchor babies? Is that enough, or maybe you'd finally recognize as equal a great grandchild of an anchor baby and not demand the right to deport him, too.

Remember, the purpose is to provide a broad definition of citizenship, such that class distinctions based on birth (e.g., race) are eliminated.

If residency in the US is not the only standard, then, what would be? What to do with all those descendants born here of slaves who were brought over from Africa?

That is much the problem that has been going on for a long time: this idea that people who are citizens should be exposed to other people trying to attribute second-class status to them. And you wonder why racism persists.

The fact is, we are all descendants of anchor babies – some just have the luxury of counting back a few more generations to get to their "fresh off the boat" ancestors. So, how to you distinguish citizenship under the 14th based on how many generations one must count to find the ancestor who came here from another nation?

October 4, 2010 at 7:23 am

Philosopherking

OK but the amendment only says children born here so that doesn't include the parents of those children. They can be deported and the children can stay here.

The residency requirement could mean people who are legally allowed to stay within the legal jurisdiction of the state. I can't imagine that applies to people who don't have a legal right to stay within the jurisdiction of the state. Many people reside in this country such as terrorist and illegal aliens but that doesn't mean they can reside here legally.

Former slaves and their descendants for which this amendment was created for did reside here legally since they could not be deported. This is why it applied to them and their situation but illegals can be deported so they don't have a legal right to reside in this country. The 14th amendment may not apply to them or their descendents.

Contrary to what most people on the left think we were not all anchor babies since many people arrived through ellis island and legally applied to reside here.

October 4, 2010 at 7:44 am

Jeff Matthews

"Former slaves and their descendants for which this amendment was created for did reside here legally since they could not be deported. " That is putting the cart before the horse. The correct reasoning is that they cannot be deported because they reside here legally.

"The residency requirement could mean people who are legally allowed to stay within the legal jurisdiction of the state." No. Same cart before the horse problem. The states were required to allow all US citizens to reside within their jurisdictions. The purpose of the amendment was to make clear who were citizens.

"… but illegals can be deported so they don't have a legal right to reside in this country. The 14th amendment may not apply to them or their descendents." Yes, partly. Illegals do not have a right to reside here. Citizens do. As to the application of the 14th, you need to read it. In some cases, citizens are afforded greater rights than non-citizens, but the 14th does, in fact, afford non-citizens certain protections, too, e.g. "No State shall make or enforce any law which shall abridge the privileges or immunities of CITIZENS of the United States; nor shall any State deprive any PERSON of life, liberty, or property, without due process of law; nor deny to any PERSON within its jurisdiction the equal protection of the laws." The difference in usage of "citizen" and "person" was intended and not accidental.

"Contrary to what most people on the left think we were not all anchor babies since many people arrived through ellis island and legally applied to reside here. " Who did the Pilgrims apply to? How about Columbus? Shall we make the citizen requirement hinge on applications filled out on Ellis Island? Then, what do we do with all the descendants of the Pilgrims and the members of Columbus' numerous expeditions?

If you will re-read my previous post, I think it will convince you that the 14th is written in plain English and means exactly what it says. You just have to think in terms of "why" this rule was written the way it was.

October 4, 2010 at 8:53 am

Philosopherking

Yes slaves resided here legally because they could not be deported as illegal residents. Don't you think the south would have tried that first if they believed that slaves were here illegally? They knew that former slaves were legal residents so they tried other things to remove their rights as citizens such as the grandfather clause. The 14th amendment had power to stop that because the former slaves were legal residents and because they were legal residents born on this soil they were citizens.

This gave them all the rights, immunities that any other citizen had but if illegals are in the same catagory then simply residing here gives them the right to vote and simply giving them the full benefits of citizensship because they reside here goes around the naturalization clause of the constitution.

October 4, 2010 at 9:20 am

Jeff Matthews

No. It does not give illegals the same rights. It gives citizenship rights to children born here of illegals.

Let's make this easy. If a child is born here to illegals, and the child is therefore, illegal, are the children born to the illegal children (the grandchildren) illegal? If the grandchildren are illegal, then, what about their children (the great-grandchildren)?

Is there some point, maybe the 4th, 5th or 6th generation, where you would finally recognize that a person born here is a citizen? Or are all their progeny illegal forever?

If so, are the descendants of the Pilgrims illegal, or are they not? If they are not, what makes them citizens? Answer what makes the descendants of the Pilgrims citizens, and I think you might find the reasoning which will allow you to rest more peacefully with this issue.

The doctor perhaps threw you off course by the part of the article that discusses jurisdiction, by the suggestion that this clause means , "those who are under the exclusive jurisdiction of the US and are not beholden to the jurisdiction of another nation."

People expatriate to other nations all the time. Even Americans expatriate to retire in Mexico, Belize, France, etc. When they expatriate, they are no longer subject to the jurisdiction of the US. They now have their new homes in other nations and live under the laws of those nations.

The converse applies. People from many other nations expatriate and come to America to start their new lives and raise families here. They might be illegal, but they have expatriated, are in a foreign land, and are not subject to their former jurisdictions. As illegals, they are here and subject to our jurisdiction. Sure, we can send them back and re-submit them to their previous jurisdiction.

Children born to them on US soil are subject to this jurisdiction, and they are not subject to any other jurisdiction. To test this, ask, "If a child is born here to a Pakistani couple who came here illegally, would we have to extradite the child back to Pakistan if Pakistan demanded us to do so?" The answer is "no." Pakistan has no jurisdiction. We do. We claim the child as a citizen, and Pakistan has no claim to the child, period.

You might even understand this better if you consider our political asylum system. During the Cold War, we gave political asylum to many Soviets. We did not give them citizenship, but by being residents here, we subjected them to our jurisdiction and refused to recognize the jurisdiction of the USSR to demand that we extradite them back.

Citizenship does not depend on the citizenship or residency of the parents. If it did, the 14th would have stated such. But it does not. It states, people born here and subject to our jurisdiction are citizens of the US and of the states where they reside. It's as plain as can be.

October 4, 2010 at 9:47 am

Jeff Matthews

Here is an article that might help you. Just as I've been saying with reference to the issue concerning the descendants of Pilgrims:

"… the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that "where birth in the United States was clear, a child of Chinese parents was, in the Court's opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law."

The Court stated that long before the adoption of the 14th Amendment, "all white persons" born in the U.S., including children of "foreigners," were considered native-born citizens (provided that they were not "children of ambassadors or public ministers of a foreign government"), and that "[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States."

So, if we want to play the anchor baby game, there's going to be millions and millions of white Americans who will need to realize their papers are wrong because they cannot trace their heritage to someone who came here and filled out an application. It would be ironic that descendants of Pilgrims (the Pilgrims filled out no applications) and the founders of Jamestown (who did not fill out applications), are not legal.

I might fit into that category of descendants. So, obviously, there is something about my having been born here that establishes my proper citizenship even though there might be undeniable proof that I am an ancestor of a person who came here without documentation permitting his entrance.

no offense I am not going to read the whole thing. I don't have time. I do agree with this to a certain point "No. It does not give illegals the same rights. It gives citizenship rights to children born here of illegals. "

As for the 3rd, 4th, and 6th generation–you can say that where they are now is there legal domicary since no other country can claim responsibility for them. That is what I believe the 'subject to jurisdiction' was meant to imply but the text isn't clear in today's language but it might have had clear meaning at the time.

Also if they intended that any person born here was to be a citizen then they would have left it as any person born in America. Instead they added another qualifier that said they had to be born here and be subject to the jurisdiction. What that qualifier means is debatable but since it is there then just being born here is not sufficient enough to give qualify for citizenship under this amendment.

ABSOLUTE RUBBISH
"THE WORDS 'SUBJECT TO THE JURISDICTION THEREOF' MEANS OWING ALLEGIANCE TO NO ONE ELSE—THAT IS WHAT IT MEANS"
FOR GOD'S SAKE CAN ONE MAKE IT ANY CLEARER OR STATE IT MORE EMPHATICALLY
JUST BECAUSE SOMEONE CAN SUE YOU OR YOU CAN SUE OR YOU CAN BE CITED FOR JAYWALKING WHILE WITHIN THE JURISDICTION DOES NOT AFFORD YOUR OFF SPRING THE PRIVILEGE OF CITIZENSHIP

I believe the best way to fix this is to adjust the naturalization laws to say that a child born here is a us citizen but that still won't grant the parents us citizneship. They would remain citizens of their home country and may return with their newly born us citizens to take back. I don't know why anyone doesn't suggest such a simple rule change. It is much easier than undoing the 14th amendment.

I get the point of this article but isn't be subject to the jurisdiction simply meaning within the legal boundaries of law or in other words doesn't this refer to being within the legal jurisdiction of the government where that government can legally prosecute someone for breaking the law? That is what the language seems to suggest to me.